IN the Employment Equality Bill 1996, the range of religious institutions permitted to discriminate against a person, if it was reasonable to do so to maintain their ethos, was so broad that it breached the Constitution, it was submitted in the Supreme Court yesterday.
On the second day of the case to test the constitutionality of the Bill, the five judge court continued to hear arguments against its provisions.
The Bill was referred by the President, Mrs Robinson, on April 3rd last to the Supreme Court under Article 26 of the Constitution for a decision on whether it is repugnant to the Constitution. The Supreme Court has 60 days from the date of the referral to give its decision. The Bill was passed by the Dail on March 26th last.
Today, it is expected that counsel on behalf of the Attorney General will begin making submissions, arguing that the Bill is within the Constitution.
Yesterday, Ms Fidelma Macken SC, arguing against the Bill, said it allowed certain exceptions regarding the treatment of employees. In the section dealing with the exception for religious institutions, the terms were wide. It was not permissible under the Constitution because of the breadth of the provision.
The section allowed a blanket exclusion to protect the ethos of religious institutions. It also allowed discrimination on the grounds that it was necessary to do so to prevent an employee or prospective employee from undermining the ethos of the religious institution.
Article 44 (5) of the Constitution allowed that every religious denomination shall have the right to manage its own affairs and maintain institutions for religious or charitable purposes. The section in the Bill was much wider than that as it covered all institutions, charitable or otherwise.
Under this section, for example, in a small three teacher school in a rural community whose numbers of pupils had dropped under that required for three teachers, the institution was permitted to say that in order to maintain its ethos, the nonreligious teacher was the person who had to leave. It could dispense with the non coreligionist even though the merit of that teacher was the same as the others.
Taking another example, the section in the Bill would apply to a maths teacher who was neutral or had no religion and who would not therefore undermine the ethos or have anything to do with the religious side of the institution.
On the section dealing with disability, Ms Macken said the definition of what was a disability was so wide that it would affect 90 per cent of the population.
The section dealt with the obligations of employers. In particular it directed employers to provide facilities and treatment for disabled persons and all that was reasonable to accommodate that person's needs.
Ms Macken said that the categories constituted an unjust invasion of employers' private property rights and the right to earn a livelihood. The cost of the imposition of the State's proposal was a burden on employers with no recompense or provision whatsoever. If it was too great a burden, the employer had to establish that there was "undue hardship" under the section.